UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-30168
Summary Calendar
LOUISE J. CHILDS,
Plaintiff-Appellee,
VERSUS
WAL-MART STORES, INC.,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
(94-CV-1858)
August 28, 1996
Before GARWOOD, WIENER, and PARKER, Circuit Judges.
PER CURIAM:*
In this personal injury suit against Wal-Mart Stores, Inc.,
(“Wal-Mart”), the jury returned a verdict in favor of Louise J.
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
1
Childs, (“Childs”), finding that she suffered injuries from being
struck by a swinging automatic door at a Wal-Mart store in
Shreveport, Louisiana and that Wal-Mart was both negligently and
strictly liable for her injuries. Childs sustained a fractured hip
and a fractured knee.
The jury did not find that Childs was comparatively negligent
and rendered a damages award against Wal-Mart in the amount of $47,
102.93 for medical expenses and $250,000 for physical and mental
pain and suffering and/or disability, plus legal interest and
costs.
The appellant argues that the evidence was insufficient to
support the jury’s verdict and, alternatively, that the $250,000
damages award for pain and suffering was excessive. Finding the
evidence sufficient and the award not to be excessive, we affirm.
A. SUFFICIENCY OF THE EVIDENCE
Standard of Review
The standard of review for a challenge to the sufficiency of
evidence is well-settled. Unless the evidence is of such quality
and weight that reasonable and impartial jurors could not arrive at
such a verdict, the findings of the jury must be upheld. Ham
Marine, Inc. v. Dresser Industries, Inc., 72 F.3d 454, 459 (5th
Cir. 1995). The most that an appellate court can do is determine
whether there is probative evidence in the record which fairly
2
tends to support the verdict. Wood v. Diamond M Drilling Co., 691
F.2d 1165, 1168 (5th Cir. 1982), cert. denied, 460 U.S. 1069, 103
S. Ct. 1523, 75 L. Ed. 2d 947 (1983). Thus, an appellate court
will not overturn a jury’s verdict, even though contradictory
evidence was presented, if there is an evidentiary basis for the
verdict. Lavender v. Kurn, 327 U.S. 645, 652, 66 S. Ct. 740, 744,
90 L. Ed. 916 (1946); Wood, 691 F.2d at 1168.
Discussion
We hold that there is sufficient evidence in the record to
support the jury’s verdict. Childs presented an evidentiary basis
for finding the required elements of the two Louisiana statutes
under which she sued. Article 2317 of the Louisiana Civil Code
provides for liability for injuries caused by something defective
over which the defendant has custody or control. Childs was
required to prove by a preponderance of the evidence that (1) the
automatic door was defective, that is, that it created an
unreasonable risk of harm, and (2) that the defective condition was
a cause of or a substantial contributing factor to causing the
injuries. (Wal-Mart stipulated to its custody and control of the
doors.)
Childs also sued on the negligence cause of action provided by
Louisiana Civil Code article 2315, and so was required to prove by
a preponderance of the evidence that (1) the appellant failed to
3
exercise reasonable care, and (2) that any negligence on Wal-Mart’s
part was a cause of or a substantial factor in bringing about her
injuries.
The record in this case reveals that there is probative
evidence that the outwardly-swinging automatic doors struck and
injured Childs as she stood outside the Wal-Mart store. While Wal-
Mart argues that guardrails would have discouraged Childs from
standing in the path of the swinging doors and that motion sensors
should have prevented the doors from swinging open, the jury had
testimony allowing it to decide that the doors, because of defect,
did indeed strike and injure Childs. Thus, a basis for the jury’s
strict liability finding existed. The evidence also justifies a
finding of negligence on the part of the appellant. Testimony and
exhibits were presented regarding the absence of warning or “exit”
signs on the doors, various operational problems with the doors,
and Wal-Mart’s possible failure to follow manufacturer maintenance
guidelines. We cannot say that there was a complete absence of
probative fact to support the jury’s conclusion that Childs’
injuries were caused by Wal-Mart’s negligence.
B. DAMAGES AWARD
Standard of Review
A trial court’s damage award should not be overturned unless
it is clearly erroneous. Meyers v. Griffin-Alexander Drilling Co.,
4
910 F.2d 1252 (5th Cir. 1990). In Wood v. Diamond Drilling Co.,
this Court explained the heavy burden that must be overcome in
order for the Court to overturn a jury damage award.
We have repeatedly held that a jury’s award is not to be
disturbed unless it is so large as to “shock the judicial
conscience,” indicate “bias, passion, prejudice, corruption,
or other improper motive” on the part of the jury, or is
“contrary to all reason.” Thus, before a court of appeals
may set aside an award of damages as being excessive, it must
make a detailed appraisal of the evidence bearing on damages
and find that, in light of such detailed evidence, the amount
of the jury award is so high that it would be a denial of
justice to permit it to stand.
691 F.2d at 1168 (citations omitted). This Court has noted that
deference to a jury’s award is particularly appropriate in an
examination of a pain and suffering award because such is “to a
large degree, not susceptible to monetary qualification, and the
jury thus necessarily has especially broad leeway.” Seidman v.
American Airlines, Inc., 923 F.2d 1134, 1141 (5th Cir. 1991)
(quoting Simeon v. T. Smith & Son, Inc., 852 F.2d 1421, 1427 (5th
Cir. 1988), cert. denied, 490 U.S. 1106, 109 S. Ct. 3156, 104 L.
Ed. 2d 1019).
Discussion
Wal-Mart argues that the jury’s $250,000 award for pain and
suffering is excessive by reviewing lesser jury awards and the
medical facts in several Louisiana state court cases involving hip
or knee fractures. While each case must be reviewed for its own
facts, this Court has looked to awards in factually similar cases
5
decided under the same controlling law for rough guidance. See
Marcel v. Placid Oil Co., 11 F.3d 563 (5th Cir. 1994).
We do not find the amount of this damages award for pain and
suffering to be excessive. The jury’s award of $250,000 is not so
large as to shock the judicial conscience, indicate bias, passion,
prejudice, corruption, or other improper motive on the part of the
jury, or appear unreasonable. See Wood, 691 F.2d at 1168. Awards
for pain and suffering for similar injuries are wide-ranging, with
Louisiana juries awarding amounts as high as $500,000. See Merritt
v. Karcioglu, 668 So.2d 469, 479 (La. Ct. App. 1996) ($500,000 in
general damages for hip fracture to 92-year old woman); Matthews v.
Ferrer, 665 So.2d 1211 (La. Ct. App. 1995) ($380,000 in general
damages to 68-year old woman for trip-and-fall wrist fracture and
knee injury). The amount awarded in this case is significantly
lower than the high end of the range of such awards. A review of
the evidence presented does not indicate that the amount of this
award is so high that allowing it to stand would be a denial of
justice. Childs, a woman in her late seventies, suffered a
fractured right hip and left knee. She underwent hip surgery for
the insertion of a plate and screws, had a leg cast from her hip to
ankle, was hospitalized for a month, and upon her arrival home,
required home health care and physical therapy. In addition,
Childs had 24-hour sitters for over seven weeks. The injuries’
long-term effects of a reduction in her activities and independence
6
were presented at trial. Childs was unable to use a walker until
11 weeks after the incident. Evidence was presented at trial,
approximately two and a half years after the incident, that Childs
was ambulatory only with a walker, was unable to shop alone, drove
infrequently and remained on pain medication.
CONCLUSION
The jury verdict and award is AFFIRMED.
7